THE TOWN OF NANTUCKET, by and through WHITING R. WILLAUER, BRIAN J. CHADWICK, MICHAEL KOPKO, ALLEN REINHARD, and PATRICIA ROGGEVEEN, as members of the Board of Selectmen for the Town of Nantucket v. BRITTA ANN LERNER and KIRK HERLITZ, as Successor Trustees of the Herlitz Nominee Trust

Plaintiff, the Town of Nantucket, commenced this action on January 18, 2008 seeking declaratory judgment, pursuant to G.L. c. 231A, § 1, concerning any rights of defendant, Mary Virginia Herlitz, as Trustee of the Herlitz Nominee Trust, to use a parcel of real property located on K Street in Nantucket, said parcel being known as Lot C and owned of record by the town.

On July 14, 2008, defendant filed a motion for summary judgment and, among other documents, affidavits of Albert L. Manning, Jr. and Britta Ann Lerner in support thereof. Plaintiff opposed the motion on September 9, 2008, and simultaneously filed motions to strike portions of each affidavit. The motions were argued on October 6, 2008, and are the matters presently before the Court.

Upon request of the Court, on March 30, 2009, defendant filed a motion to substitute Britta Ann Lerner and Kirk Herlitz, as Successor Trustees of the Herlitz Nominee Trust, which the Court (Trombly, J.) allowed. [Note 1]

After reviewing the record before the Court, I find that the following facts are not in dispute:

1. Plaintiff, the Town of Nantucket, is the owner of a parcel of registered land located on K Street in Nantucket and designated as Lot C on Land Court Plan number 3092-S, Sheet 3 (“Lot C”).

2. Lot C abuts Hither Creek, a navigable waterway owned by the Commonwealth of Massachusetts.

3. Defendants, Britta Ann Lerner and Kirk Herlitz, as Trustees of the Herlitz Nominee Trust, are the owners of a parcel of registered land in Nantucket designated as Lot 885 on Land Court Plan number 3092-116 (“Herlitz Property”).

4. On March 24, 1927, Franklin E. Smith owned, among other parcels, both Lot C and the Herlitz Property. (A “Decision Sketch” showing the approximate location of both lots and the surrounding area is attached hereto.)

5. By trustee deed dated August 15, 1955, registered with the Nantucket Registry District of the Land Court [Note 2] as Document No. 6602, Day Trust Company, as Trustee under the will of Franklin E. Smith (“Day Trust”) [Note 3], conveyed several parcels, including the Herlitz parcel, to Robert D. Congdon and Henry B. Coleman, doing business as Congdon & Coleman (Congdon & Coleman). [Note 4]

6. By “confirmatory deed” dated April 16, 1956 and registered with the Nantucket Registry District as Document No. 6926 (“1956 Confirmatory Deed”), Day Trust conveyed to Congdon & Coleman certain rights appurtenant to the land of Smith which had been previously deeded to them.

7. The 1956 Confirmatory Deed states that certain lots previously conveyed by the Smith estate have an appurtenant right to use “ lot[]…C…for the purposes of bathing and boating,…” which “was omitted from said deeds.”

8. The 1956 Confirmatory Deed conveys to Congdon & Coleman, “the right of using said Lots B or C [as shown on Plans No. 3092-S, Sheets 2 and 3] as the case may be for the purposes as noted in said Certificate of Title.”

9. The transfer certificate of title of Franklin E. Smith, dated March 24, 1927 and numbered 1377, states that the parcel of land described therein, including what is now Lot C, is subject “to any and all public rights legally existing in and over [Lot C] below mean high water mark….”

10. Every transfer certificate of title of each successive owner of the Herlitz Property since the 1956 Confirmatory Deed has contained on the memoranda of encumbrances attached thereto a notation listing the “right to use Lot C” for “bathing and boating” as being appurtenant to the lot, and citing the April 16, 1956 Confirmatory Deed.

11. By deed dated October 30, 2002 and registered as Document No. 99431, Mary Virginia Herlitz conveyed the Herlitz Property to herself as Trustee of the Herlitz Nominee Trust (Defendant). The previous transfer certificate of title, in the name of Ms. Herlitz and her deceased husband, numbered 14042 and dated May 11, 1989, contained on its memoranda of encumbrances a notation listing the same rights and citing the same Confirmatory Deed (Document No. 6926). [Note 5]

12. By deed dated June 2, 1964, recorded on June 12, 1964 in Book 126, Page 186 and registered as Document No. 9338, New England Merchants National Bank, as Trustee under the will of Franklin E. Smith, conveyed Lot C and many other parcels of registered and unregistered land to Julius Jensen and Corille Schmidt Jensen. The certificate of title issued pursuant to that deed, numbered 4962, listed on its encumbrance sheet Document No. 6926, the so-called “confirmatory deed” granting rights over Lot C which had been omitted in earlier deeds.

13. The transfer certificate of title prior to the 1964 deed, numbered 3895 and dated October 10, 1955, contained similar language in its memoranda of encumbrances, noting the rights of other persons “to use lots B + C, plan 3092-S, sheets 2 + 3, for purposes of bathing + boating[]” and citing the April 16, 1956 Confirmatory Deed. [Note 6]

14. Every transfer certificate of title of each successive owner of Lot C since the 1956 Confirmatory Deed has contained language on its memoranda of encumbrances listing the “right to use Lot C” for “bathing and boating” and citing the April 16, 1956 Confirmatory Deed.

15. By release deed dated May 29, 1997 and registered with the Nantucket Registry District, the County of Nantucket conveyed Lot C to the Town, the plaintiff in this action. The certificates of both the County and the Town contain language in the respective memoranda of encumbrances describing the same encumbrance and citing the same Confirmatory Deed. The Town’s certificate, numbered 17,915, notes the confirmatory deed on the encumbrance sheet and states on the front of the certificate that Lot C is “subject to any and all public rights legally existing in and over the same below mean high water mark.”

16. Defendants maintain a floating dock in Hither Creek abutting Lot C during certain times of the year and have done so for many years.

17. On April 21, 2006, defendants filed a “determination of applicability” petition with the Massachusetts Department of Environmental Protection (“DEP”) proposing the construction of a gangway connecting Lot C and the dock. Plaintiff opposed the application before the DEP and subsequently filed this complaint seeking a declaration of what rights, if any, Herlitz has to use Lot C.

***

As a preliminary matter, plaintiff has moved to strike portions of the affidavits of Albert L. Manning, Jr. and Britta Ann Lerner. After review of the documents, the Court allows the motions in part and denies them in part. While the statements made by Mr. Manning and Ms. Lerner in their affidavits are vague, they nevertheless appear to be based on personal observations and are, therefore, admissible. The Court notes, however, that some of their content is not relevant.

Paragraph number 2 of the affidavit of Mr. Manning is stricken because there is no foundation for Mr. Manning’s knowledge of the subject matter discussed therein and rules that he is not qualified as an expert on that issue.

As to the affidavit of Ms. Lerner, the court finds that paragraph number one must be stricken because there is no foundation for Ms. Lerner’s knowledge in this area; she is not qualified as an expert on that issue. Paragraph number 2 of the affidavit is not stricken because, while the statements made by Ms. Lerner in this paragraph are vague, they appear to be based on personal observations and are, therefore, admissible. Paragraphs four and five of Mr. Lerner’s affidavit are stricken because, once again, there is no foundation for Ms. Lerner’s knowledge in this area; she is not qualified as an expert on that issue.

II. DISCUSSION

Summary judgment is granted where there are no issues of material fact and when the moving party is entitled to judgment as a matter of law. Mass. R. Civ. P. 56(c); Cassesso v. Comm’r of Corr., 390 Mass. 419 , 422 (1983); Cmty. Nat’l Bank v. Dawes, 369 Mass. 550 , 553 (1976). The moving party bears the burden of demonstrating affirmatively the absence of a triable issue, and its entitlement to judgment as a matter of law. Pederson v. Time, Inc., 404 Mass. 14 , 16-17 (1989).

In weighing the merits of a summary judgment motion, the court must address two questions: (1) whether the factual disputes are genuine, and (2) whether a fact genuinely in dispute is material. Town of Norwood v. Adams-Russell Co., Inc., 401 Mass. 677 , 683 (1988) (citing Anderson v. Liberty, 477 U.S. 242, 247-48 (1986)). “As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 248, cited in Carey v. New England Organ Bank, 446 Mass. 270 , 278 (2006); Molly A. v. Comm’r of the Dept. of Mental Retardation, 69 Mass. App. Ct. 267 , 268 n.5 (2007). In order to determine if a dispute about a material fact is genuine, the court must decide whether “the evidence is such that a reasonable [fact finder] could return a verdict for the non-moving party.” Anderson, 477 U.S. at 248.

With respect to any claim on which the party moving for summary judgment does not have the burden of proof at trial, it may demonstrate the absence of a triable issue either by submitting affirmative evidence that negates an essential element of the opponent’s case, or “by demonstrating that proof of that element is unlikely to be forthcoming at trial.” Flesner v. Technical Communications Corp., 410 Mass. 805 , 809 (1991). The party opposing summary judgment “cannot rest on his or her pleadings and mere assertions of disputed facts to defeat the motion for summary judgment.” LaLonde v. Eissner, 405 Mass. 207 , 209 (1976). However, where appropriate, summary judgment may enter against the moving party. Mass. R. Civ. P. 56(c).

When the court considers the materials accompanying a motion for summary judgment, the inferences to be drawn from the underlying facts contained in such materials must be viewed in the light most favorable to the party opposing the motion. Attorney Gen. v. Bailey, 386 Mass. 367 , 371 (1982). The court does not “pass upon the credibility of witnesses or the weight of the evidence or make its own decision of facts.” Id. at 370. However, the court may only consider evidence which meets the requirements of Mass. R. Civ. P. 56(e). That evidence must come from “pleadings, [Note 7] depositions, answers to interrogatories, and responses to requests for admissions under Rule 36, together with…affidavits, if any….” Mass. R. Civ. P. 56(c).

In the instant matter, there are no genuine issues of material fact within the meaning of Mass. R. Civ. P. 56(c) and, therefore, this case is proper for summary judgment. Rule 56(c).

a. Existence of Easement

“An easement is an interest in land which grants to one person the right to use or enjoy land owned by another.” Commercial Wharf E. Condo. Ass’n v. Waterfront Parking Corp., 407 Mass. 123 , 133 (1990). “It is ‘a right, which one proprietor has to some profit, benefit, or beneficial use, out of, in, or over the estate of another proprietor.’” Id. (quoting Ritger v. Parker, 8 Cush. 145 , 147 (1851)).

“‘An easement is appurtenant to land when the easement is created to benefit and does benefit the possessor of the land in his use of the land.’” Schwartzman v. Schoening, 41 Mass. App. Ct. 220 , 223 (1996) (quoting Restatement of Property, § 453 (1944)). Absent any language to the contrary, an easement is presumed to be appurtenant rather than in gross. Jones v. Stevens, 276 Mass. 318 , 323 (1931) (quoting Willets v. Langhaar, 212 Mass. 573 , 575 (1912)). Both the benefit and the burden of an appurtenant easement, by definition, attach to their respective estates and run with them.” Well-Built Homes, Inc. v. Shuster, 64 Mass. App. Ct. 619 , 630 (2005) (and cases cited); Restatement (Third) of Property, §5.1 (2000); see G.L. c. 183, § 15; Melville Shoe Corp. v. Kozmisnsky, 268 Mass. 172 , 179 (1929); Meheran v. Lafferty 11 LCR 315 , 316 (2003) (Misc. Case No. 283237) (Sands, J.).

General Laws chapter 185, § 46 provides “[e]very plaintiff receiving a certificate of title in pursuance of a judgment of registration, and every subsequent purchaser of registered land taking a certificate of title for value and in good faith, shall hold the same free from all encumbrances except those noted on the certificate….” 185, § 46. “[I]f the purchaser of registered land has notice of the existence of a way over his estate, that person takes the land subject to such an easement, even if it is not mentioned as an encumbrance in the grantor's certificate of title.” Feldman v. Souza, 27 Mass. App. Ct. 1142 , 1143 (1989) (and cases cited); see id.

In the instant case, by confirmatory deed dated April 16, 1956, Day Trust Company granted an easement appurtenant to the Herlitz Property to use Lot C “for the purposes as noted in said Certificate of Title.” [Note 8] The deed is apparently referring to the March 24, 1927 Franklin E. Smith transfer certificate of title which did not expressly contain the phrase “bathing and boating” but certified that the real estate was subject to “any and all public rights legally existing in and over [Lot C] below mean high water mark….”

Hither Creek is Commonwealth tidelands, within the meaning of G.L. c. 91, § 1. 91, § 1. It is well-settled law in the Commonwealth that the Colonial Ordinance of 1641-1647, subjects the flats—the land between the high and low water marks—to private ownership by the owner of the adjoining upland. [Note 9] Colonial Ordinance of 1641-1647, reprinted in The Book of the General Lawes and Libertyes, 50 (1649); Storer v. Freeman, 6 Mass. 435 (1810). The Courts have interpreted the Colonial Ordinance as reserving rights in trust for the benefit of the public superior to those of the private owner; the public holds the right “to have the benefit of the waters for navigation, fishing and fowling.” Fafard v. Conservation Comm’n of Barnstable, 432 Mass. 194 , 198, (2000) (quoting Crocker v. Champlin, 202 Mass. 437 , 441 (1909)); see Colonial Ordinance of 1641-1647; Opinion of the Justices, 365 Mass. 681 , 686 (1974); Boston v. Richardson, 105 Mass. 351 , 362 (1870). Upon the public waters of Hither Creek seaward of the low water mark, the public has “a right to swim or float in or upon [the] public waters as well as to sail upon them.” Butler v. Attorney Gen., 195 Mass. 79 , 83 (1907).

Although it is true that the language is vague, the only reasonable interpretation of the 1956 Confirmatory Deed, harmonized with the 1927 Smith Certificate of Title, is that the deed grants to the owner of the Herlitz Property an appurtenant easement to use Lot C for access to Hither Creek, for the same purposes that the public may rightfully make use of the flats and the public water. An express easement for access to public waters “confers upon the easement holder rights different in kind, but complimentary to, those provided by the Colonial Ordinance.” Scioletti, Jr. v. Thomas, 16 LCR 782 , 791 n. 89 (2008) (Misc. Case No. 346579) (Grossman, J.) (citing Old Colony Street Railway Co. v. Phillips, 207 Mass. 174 , 180-81 (1911)). For example, the holder of such an easement has the right to walk on the flats at low tide or to cross the servient estate in order to gain access to the water, neither of which is a right held by the public. Id.

I am further persuaded by the fact that the parties to the 1956 Confirmatory Deed made the effort to execute and register this easement correctly. It is unlikely that the parties, in taking this extra step, intended only to convey an easement conferring the same rights already held by the owner of the Herlitz property as a member of the public. It is more likely that the parties intended—as the 1956 Confirmatory Deed states – to correct the inadvertent omission in the earlier deed of “a right of using lot[]…C…for the purposes of bathing and boating….” (emphasis added).

The benefit and burden of this appurtenant easement have run with the Herlitz Property and Lot C, respectively, ever since. More importantly, the transfer certificates of title of each successive owner of Lot C since the 1956 Confirmatory Deed has contained in its memoranda of encumbrances language declaring that Lot C is subject to the “right to use Lot C” for “bathing and boating”, and citing the April 16, 1956 Confirmatory Deed. Accordingly, I rule that the defendants, as owners of the Herlitz Property, hold an appurtenant easement to access Hither Creek and Lot C for the purposes of bathing and boating.

Plaintiff also attempts to differentiate the transfer certificates of title from their respective memoranda of encumbrances. Plaintiff argues that the transfer certificates of title in the Lot C chain of title do not provide for any easements. Specifically, plaintiff points out that the appurtenant rights to use Lot C are not shown on the front of the Herlitz certificate of title. I do not agree that the memoranda of encumbrances are so easily separable. In fact, the memoranda are at least an attachment to the certificate and are parts of the whole. The court notes that the memoranda specifically refer to the identifying number of the certificate to which it belongs. Practically speaking, these memoranda are not separate from their respective certificates at the registry of deeds. It would be foolhardy for someone examining any certificate of title not to also examine the memorandum of encumbrances attached thereto. A title examiner investigating the title of either the Herlitz property or the Town property would easily discover that the latter parcel was subject to an easement benefiting the former. For this reason, plaintiff’s land is subject to the rights of the Herlitz Property for bathing and boating.

b. Scope of Easement

A deeded easement is subject to the law of interpretation of deeds. “The basic principle governing the interpretation of deeds is that their meaning, derived from the presumed intent of the grantor, is to be ascertained from the words used in the written instrument, construed when necessary in the light of the attendant circumstances.” Sheftel v. Lebel, 44 Mass. App. Ct. 175 , 179 (1998) (and cases cited); Doody v. Spurr, 315 Mass. 129 , 133 (1943) (and cases cited). “[A]n easement granted in general and unrestricted terms is not limited to the uses made of the dominant estate at the time of its creation, but is available for the reasonable uses to which the dominant estate may be devoted.” Hewitt v. Perry, 309 Mass. 100 , 105 (1941) (and cases cited).

Generally, an express easement implicitly includes all rights necessary for the full use and enjoyment of that easement. Sullivan v. Donohoe, 287 Mass. 265 , 267 (1943); Mt. Holyoke Realty Corp. v. Holyoke Realty Corp., 298 Mass. 513 , 514 (1937); Lowell v. Piper, 31 Mass. App. Ct. 225 , 229-30 (1991). However, the rights held by the dominant estate are not absolute; the servient estate retains rights in the land for all purposes not inconsistent with the use of the easement. Carter v. Sullivan, 281 Mass. 217 , 225 (1932); Merry v. Priest, 276 Mass. 592 , 600 (1931). Any ambiguity concerning the scope of an easement is “resolved in favor of freedom of land from servitude.” Butler v. Haley Greystone Corp., 352 Mass. 252 , 258 (1967).

It is well-settled law that the dominant estate has the right to make reasonable repairs to maintain the right-of-way for full use and enjoyment. Guillet v. Livernois, 297 Mass. 337 , 340 (1937); Mt. Holyoke Realty Corp., 298 Mass. at 514. Similarly, the dominant estate must have the right to make improvements, where such alterations are reasonably necessary to adapt the way to the granted use. Codman v. Wills, 331 Mass. 154 , 158 (1954) (and cases cited). Moreover, in certain circumstances, “this use may vary from time to time with what is necessary to constitute full enjoyment of the premises.” Mahon v. Tully, 245 Mass. 571 , 577 (1923); see Tehan v. Sec. Natl. Bank, 340 Mass. 176 , 182 (1959); Parsons v. New York, New Haven, and Hartford R.R. Co., 216 Mass. 269 , 273 (1913). However, any repairs or improvements may not burden the servient estate “to a greater extent than was contemplated or intended at the time of the grant.” Doody, 315 Mass. at 133.

In the instant case, defendants’ property holds rights in an easement over Lot C for the purposes of bathing and boating. Defendants propose to construct a ramp or gangway on Lot C in order to connect the shore to a floating dock located below the mean low-water mark. There is nothing in the grant of the easement authorizing the dominant estate to construct or maintain a gangway for boating purposes on their easement. Defendants argue that this ramp is reasonably necessary for the full use and enjoyment of the defendants’ boating easement and, therefore, such authorization must be implicit in the grant. Without the ramp, defendants contend that they would be limited to launching smaller watercraft from the shore of Lot C and would be forced to board larger watercraft moored off shore by use of a dingy.

The April 16, 1956 Confirmatory Deed confirms an appurtenant right to use Lot C “for the purposes of…bathing and boating.” This phrase alone is not sufficient to construe an intent to convey the right to build structures related to bathing and boating on the servient estate. An easement for bathing and boating is in the nature of a recreation easement, primarily to provide access to a body of water in order that the user might, as the name suggests, bathe and boat. The beach or shore of the servient estate provides a harbor of sorts, from which this activity may launch and land. The right to boat does not imply rights to erect structures on the waterfront property, no matter how associated with boating it may be, because such structures are, generally, not necessary to the full use and enjoyment of such an easement.

Since the original grant of the easement, none of the easement holders has required a ramp in order to exercise its rights. In fact, as evidenced by the defendants’ affidavits, the Herlitz family has used the easement since November 7, 1961, without need of a ramp. By defendants’ own admission, the ramp would merely “enhance” its enjoyment of the easement by making certain boating options more convenient. Without the ramp, defendants have the same boating options available to them that the dominant estate holder has always had on Hither Creek. Although the easement holder may suffer some inconvenience in the use of larger watercraft when accessing such craft from Lot C, this demonstrates only that the proposed ramp is an amenity.

The case law is rife with circumstances in which a right is literally un-exercisable, absent repair or improvement to the servient estate. See Walker v. E. William & Merrill C. Nutting, Inc., 302 Mass. 535 , 543 (1939); Guillet, 297 Mass. at 340; Mt. Holyoke Realty Corp., 298 Mass. at 514. Frequently a dominant estate holder repairs the surface of a way. Such alteration is not expansive of the original space occupied by the easement and, therefore, not more burdensome on the servient estate. Here, defendants propose to construct a previously non-existing structure on the shore of Lot C. The language of the deeded easement is succinct and comprehensive. There is nothing in the language or the circumstances attending the grant to suggest an intention to convey such broad rights as defendants assert. The construction of a gangway on Lot C would present an obvious burden on the servient estate beyond the original intent of the easement. Accordingly, I rule that the construction of a ramp on Lot C for access to the floating dock is not reasonably necessary for the use and enjoyment of the easement for boating.

CONCLUSION

For the foregoing reasons, this Court concludes that the defendants do not have the right to construct a gangway on Lot C. Although defendants, as owners of the Herlitz property, hold an easement to use Lot C for the purposes of bathing and boating, this easement does not extend to include the right to construct a gangway on Lot C to connect Lot C and the floating dock. Such an alteration was not the original intent of the grant and therefore would burden the servient estate beyond that intent. Accordingly, the defendants’ motion for summary judgment is hereby DENIED. These rulings having determined all matters raised in the plaintiff’s complaint, summary judgment is GRANTED for plaintiffs pursuant to Mass. R. Civ. P. 56 (c).

Judgment to issue accordingly.

Charles W. Trombly, Jr.

Justice

Dated: March 31, 2009